Legal Update: Can California Shield Kids From Violent Videogames?

Audio

Aired 11/9/10

On this Legal Update, The US Supreme Court hears arguments on California's videogame labeling law. The Birthers lose another round in court. And an LA Appeals court resolves a twisted tale of paternity and inheritance.

On this Legal Update, The US Supreme Court hears arguments on California's videogame labeling law. The Birthers lose another round in court. And an LA Appeals court resolves a twisted tale of paternity and inheritance.

Guest:

These Days Legal Analyst, Dan Eaton

Read Transcript

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: California's video game labeling law faces some scathing questions from justice on the US supreme court. The Birthers refuse to die, and a truly disturbing of paternity and inheritance unfolds in Los Angeles. Joining me to discuss these fascinating legal case system my guest, These Days legal analyst, San Diego attorney, Dan Eaton. Good morning, Dan.

DAN EATON: Good morning, Maureen. Sort of a theme of children going on here in one way or another.

MAUREEN CAVANAUGH: Yes, sort of a good one, and then a weird one coming up. But California's law that tries to keep under aged kids from buying --

DAN EATON: Or renting.

MAUREEN CAVANAUGH: Violent video games, made its way to the U.S. Supreme Court last week. You talked about this case last May. Remind us what it's about. Of.

DAN EATON: It's about a billion dollar industry, and what's fascinating, Maureen, two thirds of households have these things of what's at stake is a law that was signed by Governor Schwarzenegger in 2005, but which never has been enforced because courts have blocked its enforcement. What the law says is it restricts the sale of offensively violent video games or any rental of video games who is under the age of 18, and subjects those who sell them or rent them to kids under the age of 18, to civil penalties of up to a thousand dollars per offense of the act was aimed at video games that enabled the player to kill, maim, dismember, or sexually assault a depiction of a human being. That's among things that a reasonable person would feel appeals to a, quote, "deviant or morbid interest in minors," close quote. The law also required a labeling of these things with an 18 sticker on them so I wouldn't be inadvertently sold to gamers under the age of 18.

MAUREEN CAVANAUGH: Well, as you mentioned before, the law hasn't been enforced because of legal challenges, one which landed in the 9th circuit court of appeals. The 9th circuit concluded that the law offended the free speech clause of the first amendment of the U.S. constitution. Why?

DAN EATON: Well, the first thing they did is that they rejected the attempt of the state to extend a case by the name of Ginsburg versus no, which is a 1968-case, which held that when you're talking about at least sexual materials, you only -- the state only has to show there's some rational basis or a reason that they can articulate to keep them from the hands of children. Even if it wouldn't qualify to the kind of obscenity to keep out of the hands of adults. The state said that ought to apply to morbidly violent video games as well. And all we have to show is that the law is pretty reasonable. The core the of appeals are, the ninth circuit said no. In fact, the Supreme Court said the ninth circuit has never extended it from sex yell materials to violent materials. And in fact, children have been exposed to violent materials from age immemorial. And we're not willing to, as the 9th circuit put it, quote, "to boldly go where no court has gone before," of course calling up Star Trek.

MAUREEN CAVANAUGH: Why indeed is there this different between the context of sexual materials and violent materials? Why doesn't it satisfy the standards?

DAN EATON: Well, the state argues of course, that there really should be no difference, at least when you're talking about 234 grew as much violent depicted in some video games. But the bottom line is, Maureen, when we're talking about minors, and the application of the first amendment, there is both a broader shield and a shorter sword. And by that, I mean that minors have a shorter sword to be able to assert their expressive first amendment rights, and the state can impose a broader shield on what they can receive to judge for themselves what is and is not appropriate for them to receive. What this law essentially citizen is that, look, we want to help parents to control what their patients -- what their kids are exposed to. And if parents want their kids to be exposed to this morbidly violent video game interactive kind of programming, well, these video games, then they have to go out and buy them for themselves. The kids cannot buy them alone. So that is really what's at issue. And that was keyed up for the Supreme Court.

MAUREEN CAVANAUGH: And the Supreme Court heard oral arguments about this on election day, last Tuesday; is that right?

DAN EATON: That is right.

MAUREEN CAVANAUGH: And what was the focus of the argument?

DAN EATON: Man, it was a fascinating argument. I read the entire transcript, and there was a rock 'em, sock 'em thing going on.

MAUREEN CAVANAUGH: How appropriate.

DAN EATON: Exactly. Well, Justice Scalia said, look, would this bar the sale for example of grim's fairy tales? I don't know if you've ever read the original Cinderella, but that's very grew as much, and details some weird mutilation and so forth. Justice Soto mayor said would that include bugs bunny? And they said no, the lawyers representing the state said the interact activity creates an issue where there is a problem. When a minor can vicariously maim or injure folks. And the state has an interest in both protecting the minors from that kind of thing and also helping the parents who have the right to raise their children as they would. Justice Scalia, clearly one of the most conservative justices by the way, clearly wasn't buying it. Saying, look, violence historically has not been the kind of speech, unlike obscenity, viewed as outside the protection of the first amendment. And what you're asking us to do is create an entirely new class that's outside the protection of the first amendment with respect to minors and at least justice Scalia and one of the other justices said they're not willing to do that.

MAUREEN CAVANAUGH: This rock 'em, sock 'em you're talking about is a usual allies on the Court sort of engaged one another in a discussion about this. Samuel Alito basically challenged Justice Scalia about what -- what does he mean that the -- did he want to know what the founding father James Madison would say about violent video games? Is that the kind of constructionist view that he wanted to take in this argument?

DAN EATON: I mean, he was clearly digging at Justice Scalia, who as you pointed out is normally an ally of his, but at one point, he said well, what Justice Scalia is really asking what James Madison who is considered the father of the constitution would think of video games. And Justice Scalia said, no, that's not what I want to know at all. What I want to know is what he thought about violence, which was viewed as within the protection of the first amendment. But justice Alito anyway was clearly not having it. He thought judging from his questions, that this video game law was fully appropriate, and that discussions of violence as such didn't really have much currency when you're talking about exposure of these very morbidly violent video games to minors.

MAUREEN CAVANAUGH: You know, Dan, this is the kind of case that infuriates many people about the legal system. They say, you know, anyone can tell these games as you so -- as you said, that allow children to maim, to dismember, to sexually assault, the depiction of a human being obviously is not the proper thing for children to have. So why is it that we cannot make a law banning kids from buying or renting them.

DAN EATON: Well, the issue is at least according to the video game producers is that that's something parents ought to do for themselves, and the state cannot assist in the form of censorship. In fact at one point, Justice Scalia said, why don't you crate a board of censorship? That would be very nice. It was clearly a sardonic comment. But Justice Brier actually made the point, look, let's talk about common sense. States clearly can restrict minors' access to sexually related materials, even sexually related material that doesn't constitute obscene material, and he said, and let me quote, "what common sense is there in having the state of the law that a state can forbid and say to the parent that the child, the 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as I have described? I have tried to take as bad a one as I could think of, gratuitous torture of children. Okay. Now you can't buy a naked woman, but you can go and buy that, you say to the 13-year-old? Now, what sense is there to that?" So he at least clearly seems to think that the state does have this interest in protecting minors from video games. And what is that interest, Maureen, exactly? Preventing the kind of psychological harm, the state says, the state asserts that comes from exposure to these morbidly violent video games.

MAUREEN CAVANAUGH: And yet whenever the U.S. Supreme Court is doing -- is addressing anything involving free speech, the first amendment, that is the haul mark of our bill of rights. And so they go about it very, if I may say this judiciously, and things that may seem commonsensical don't always jibe with our freedoms.

DAN EATON: Well, they don't. Because the first amendment includes not of course not just the right to express but the right to receive, and the question is whether minors ought to have this, not with standing the state's ability to shield them from some things, but whether they do have the right to receive this kind of material. The interactivity of it clearly troubled justice Roberts, who said, well, it's one thing for you to sit passively and read a book or watch a movie, it's another thing to engage interactively in these sorts of things where you're vicariously actually engaging in this maiming activity. And he said, no, I -- he said I have some problem with that. I can certainly see, said chief justice Roberts, where the state was heading in fact objection this law, but we'll have to see whether it ultimately survives constitutional scrutiny.

MAUREEN CAVANAUGH: And we'll have to see where all these justices fall in their decision makes.

DAN EATON: Well, remember we have a new justice, Elena Kagan, who suggested that mortal candidate said, well, mortal combat was probably played by a lot of the justices' own clerks when they were growing up. So it'll be interesting to see what she has to say about one of the first major cases on which she will have to cast a vote.

MAUREEN CAVANAUGH: They'll have to check for psychological damage.

[LAUGHING]

MAUREEN CAVANAUGH: When is this decision expected?

DAN EATON: It could come out as late as June before the Court term ends.

MAUREEN CAVANAUGH: I'm speaking with my guest, our legal analyst, Dan Eaton, and we're moving on now to the people who believe president Barack Obama has never released his real birth certificate and never proven his American citizenship, they have become known as the Birthers. They still exist, and last month, the California court of appeals ruled on an appeal brought against various California state officials of whether the state has hay duty to verify whether an elected president is constitutionally eligible to hold office.

DAN EATON: These people are basing their argument on a clause in the constitution that requires people who are elected presidents to be, quote, natural born citizens, close quote, which generally is understood to mean you were born here in this country, as opposed to being naturalized, such as Arnold Schwarzenegger. This is the case of Keys versus Bowen. The plaintiff in the case is named Allen Keys, and some people may remember that he ran for president in the Republican primary in 2000. But what's also interesting is that thee also ran for the senate in 2004, against a promising candidate there in Illinois called Barack Obama. So he was the Republican nominee against Barack Obama back then. And so what -- what he did was he said, look, the heart of the lawsuit was that there was reason to doubt that president Obama was a natural born citizen, and that the secretary of state, before certifying his name on the presidential ballot in California and the state's 55 electors before casting their vote to certify that California awarded him his electoral votes had a duty to determine whether in fact he was a natural born citizen and was in fact eligible to hold the office of president of the United States. So he sued the secretary of state, the president of the United States, the vice president of the United States , and the 55 electors, saying you have this duty, you didn't discharge it, and that's a problem.

MAUREEN CAVANAUGH: Well, this has come up through the Courts now. As we're talking about, the California court of appeal, but what did the recent trial court do?

DAN EATON: It throughout the lawsuit altogether. It said there was no duty on the part of the secretary of state, there was no duty on the part of the electors, and said as far as the president and vice president are concerned you haven't alleged they had any duty to do anything. So we're gonna throw the lawsuit out altogether. But Mr. Keys and his allies went ahead and appealed.

MAUREEN CAVANAUGH: What did they say? How did they rule on the duty of the members, let's say of the electoral college.

DAN EATON: The electoral college issue, the California court of appeal said, look, they don't have any kind of duty to determine the qualifications. What they have a duty to do under California law, Maureen, is to vocal for the candidate designated by their political party. That's it. That's their own duty, and they don't have a duty to go back and determine whether the political party got it right in nominating someone who was not qualified by nature of citizenship of so there wasn't this kind of duty that the people who are suing said that there was.

MAUREEN CAVANAUGH: So what did the appeals court find as to the duty of the California secretary of state to confirm that a presidential candidate is a natural born citizen as required by the constitution?

DAN EATON: Maureen, this was one that required more sense of unless on the part of the Court of Appeal, and they said, look, the secretary of state really had no duty at all to determine whether the presidential candidate was a natural born citizen. All the secretary of state was required to do was to require that they place the name of the party's designated nominee for Perez kent and vice president on the ballot. The secretary of state couldn't go back and look behind to see whether in fact the candidate qualified under the terms of the constitution. The issue here, Maureen, is whether the secretary of state was the right person to determine this, or whether in fact the issue was brought up in Congress, which ultimately certifies the result of the election. And the court of appealed, you gotta leave this to Congress.

MAUREEN CAVANAUGH: Are, what about the plaintiff's argument, though, that it's not -- the secretary of state in California shouldn't just blindly put a party's nominee on the ballot of let's say this was governor Schwarzenegger and he was the party's nominee for president. Shouldn't the of state point out that governor Schwarzenegger was born in Austria and therefore is not eligible to run for president.

DAN EATON: Maureen, the short answer to that, said the court of appeal was that's a risk that political party is going to have to take, and the California state cannot go in and step behind it. Because the plaintiffs were arguing, that would be absurd in itself, having Arnold Schwarzenegger for president. What the court of appeals said was, quote, "The truly in absurd result would be to require each state election official, in our case, the secretary of state, to investigate and determine whether the proper party's candidate met eligibility criteria of the U.S. Constitution, giving each the power to override a party's selection of a presidential candidate. Any investigation of eligibility is best left to each party which presumably will conduct the appropriate background check or risk that its nominee's election will be derailed in Congress, which is authorized to entertain and resolve the validity of elections following the submission of the electoral votes," close quote. In other words, leave it to Congress. They're the ones where you have to have this fight if it's going to be had.

MAUREEN CAVANAUGH: It's interesting, though, you're right, I was a little unkind to the Birthers' movement because I do believe that the president of the United States has proven to everyone, it should be everyone's satisfaction, that he is indeed a citizen of the United States of America. However, it does -- I did start to question as I read this, isn't this anyone really truly before a person is elected who does vet them to the point where you would find out whether or not someone was qualified to run?

DAN EATON: Well, you would think so. Intelligent enough, president Obama ran against John McCain, and remember his eligibility was also questioned. Because he was born in the Panama Canal zone. So Maureen, there are institutions that deal with this. And the institutions are the United States Congress and the political parties themselves. And they say those are sufficient safety nets in place. I mean, remember the confusion that resulted in 2000 when we were talking about, all right, well, with the casting of votes and which votes were eligible. What if we went behind that further and talked about the legitimacy of a candidate's, if you will, birth in this country? That would create a whole other issue if 50 different state election officials could weigh in on that. There would be chaos, but the Birthers are seeking and I don't use that term pejoratively. I use it because the Court used it, but those who are challenging the legitimacy of the president's election are saying, the constitution has this requirement, and we think it needs to be enforced by someone. And we think the secretary of state as the California election official ought to be the one to do it.

MAUREEN CAVANAUGH: So and this have legs? Are the people who are challenging president Obama's status, are they pursuing more legal challenges.

DAN EATON: They certainly could. They could go to the California Supreme Court, and potentially the United States Supreme Court because you could argue that it does raise a federal question. The federal question being of course whether the secretary of state had discharged her duty arguably under some sort of federal law to cast their votes in the manner prescribed by the constitution. So we'll see whether they continue this or not. But the questions they raise are constitutionally based and they're based on state law requirements concerning what the electors and what the secretary of state are required to do with respect to presidential nominees who make their way onto the California state ballot.

MAUREEN CAVANAUGH: Well, finally Dan, a disturbing and strange story from Los Angeles. Of about whether a child born out of wedlock has a right to share of a trust established by his biological grandfather. Tell us about this case. And it is a doozy.

DAN EATON: It really is very, very weird. And it was just decided last Friday, Maureen, and this is a case involving a man by the name of Jonathan Carrano who was conceived when his father, a man by the name of Christopher Papaz had been shot in the leg, and he had sex with his physical therapist without her knowledge. How the physical therapist was taking care of this man at his parent's home, and he gave her a drug, had sex without her knowledge, and that was the first that Jonathan Carrano was conceived. The therapist was married to another man, so under California law, it was presumed to be -- Jonathan Carrano was presumed to be his child. As a matter of fact even though Christopher Papaz went around bragging that it was in fact his child, and eventually, Mr. Papaz's father eventually was introduced to his grandson by the child's mother. Why is this all so important? Because the Papazes, the grandparents, the biological grandparents were fairly wealthy. And they had established a trust. And they had said in that trust that Christopher -- that their son's issue, Christopher Papaz's issue or children, in law we call children issues, but in any event, his issue were entitled to the trust. And those who otherwise would have gotten it but for Jonathan getting it, challenged that, and said, well, no. So the bank that was named the trustee wept in and sued and said tell us who the right beneficiaries are. And here's one more important fact. Mr. Carrano, of the woman's husband, never formally adopted Jonathan Carrano, and that was a significant issue. Because the children who are eligible to receive this trust under this trust were said to include those who were not adopted out of the blood line. In other words, if Mr. Carrano had adopted Jonathan Carrano, he would not have been a beneficiary.

MAUREEN CAVANAUGH: What did the Court rule in this case.

DAN EATON: The trial court, by the way, sided with the challenging beneficiaries, but the other would be beneficiaries. But the Court of appeals said no, the trust was clear enough that it was a lineal descendant who was not adopted out of the blood line, that he was entitled to this trust. The results of this trust. And therefore he was entitled to it. There was no ambiguity. You couldn't say for example that, well, since the man raised Jonathan Carrano, he was sort of adopted. He said, no, adopted has a very legal term. This trust was prepared by a lawyer, and therefore Jonathan is entitled because he was never formally adopted by this woman 'husband, and he was indisputably a legal descend apt of the grandparents' son.

MAUREEN CAVANAUGH: Now the people who did not want Jonathan to get any part of the trust said that, you know, our grandparents were very conservative. They would never have intended to have this out of wedlock child conceived in this very disreputable way, have anything to do with their having a share of the trust. How did the Court of Appeals address that particular argument.

DAN EATON: That said, Maureen, that we can't look at that outside evidence. What they were saying, you just have to look at the words when the words are perfectly clear. Of yes, the people who were challenging were saying these were very conservative people. They never would have wanted that to happen. And in fact they didn't specifically make provisions for this special case child by the name of Jonathan Carrano. What the Court of Appeals said that didn't exclude him, and the terms that they used did include him. And it didn't matter this far that they didn't specifically exclude him as a special case. Particularly because in the final days of the grandfather's life, he was actually introduced to this person who was then 21 years old as his biological grand child. And had actually talked to his bankers and his lawyers about Jonathan Carrano as his biological grand child. He said, he could have limited it to grand children who actually had a relationship with their son, and who were raised by their son. But they didn't. They used a very specific term for lineal descendants who had not been adopted out of the blood line. And that was enough for Jonathan Carrano to get the money.

MAUREEN CAVANAUGH: And I'm not an attorney, I never even had any extensive law training, but isn't it sort of wills 101, that the people you want to inherit you name.

DAN EATON: Well, you could you can of course. And the funny thing is, are the grandfather who was the second to die, actually called -- the grandson Leroy, didn't even use his real name, Jonathan Carrano. But that's all static, the bottom line is that under the plain terms of this trust, he was included. And they could have said it had to be the product of a legal marriage in their trust. They didn't limit it like that. Therefore Jonathan Carrano gets the money after all. It's really a fascinating case. And if you want to make it very clear, you have to make it very clear what you want to do. What they said, what the challenging beneficiary said was, they never would have wanted this to happen. And they said, well, we have to look at the plain words and the plain words said that's who gets the money. And therefore Jonathan Carrano gets the money. You cannot go ahead and second guess when it contradicts the plain words of the trust.

MAUREEN CAVANAUGH: Truth stranger than fiction. I want to thank you so much for outlining all of these very fascinating cases.

DAN EATON: Thank you Maureen.

MAUREEN CAVANAUGH: And if you'd like to comment, please go on-line. KPBS.org/These Days. Coming up, photographer gen Davis talks about her self portraits and more. As These Days continues here on KPBS.